3  A  t 
HZ  5* 


j  Reprinted  from  The  Annals  of  the  American  Academy  of  Political  and  Social 
Science,  Philadelphia,  July,  1915. 

Publication  No.  916. 


UNARMED  NEUTRALITY 


By  Albert  Bushnell  Hart, 
Harvard  University. 


The  administration  at  Washington  in  its  policy  of  neutrality 
is  navigating  a  foggy  sea  strewn  with  rocks,  along  coasts  where  the 
lighthouses  have  been  put  out  and  the  buoys  changed  into  floating 
mines.  President  Wilson  is  still  manfully  trying  to  use  the  regular 
charts  of  treaties  and  international  law;  and  insists  upon  sailing 
the  good  old  compass  courses.  In  a  world  full  of  roarings  and 
!  vaporings,  the  United  States  is  the  one  great  power  in  the  world 
which  continues  to  base  its  policy  upon  permanent  lines  of  good 
will.  Even  Italy  and  China,  the  only  other  populous  nations  of  the 
1  earth  which  have  not  been  drawn  into  the  war,  find  their  neutrality 
strained  to  the  utmost  by  the  demands  of  neighboring  powers. 
Every  belligerent  has  set  up  some  new  and  strange  doctrines  of  its 
^  own  in  international  affairs,  put  forward  in  the  hope  to  realize  some 
—  small  and  temporary  advantage  over  its  military  adversaries. 
While  it  is  not  true  that  international  law  has  for  the  time  being 
gone  into  “innocuous  desuetude,”  it  is  true  that  the  three  powers 
with  which  we  come  closest  into  touch — Great  Britain,  Germany 
and  France — all  make  use  of  what  we  might  call  an  eclectic  interna¬ 
tional  law,  choosing  the  principles  that  suit  them,  and  filling  in  the 
gaps  with  new  ideas  of  their  own. 

•^v 


Confusion  Worse  Confounded 


One  reason  for  the  present  confusion  on  this  subject  is  that  too 
much  stress  has  been  laid  upon  documentary  international  law, 
such  as  Hague  Conferences,  Declarations  of  London,  treaties,  and 
the  generalizations  of  the  text  writers;  and  too  little  attention  has 
been  paid  to  the  fundamental  reasons  why  there  should  be  neutrals, 
neutral  rights  and  neutral  trade.  Hence  an  international  mix-up. 
^Germany  notifies  the  world  that  the  seizure  of  provision  ships  and 
cargoes  is  so  contrary  to  all  principles  of  international  law,  that  it 
justifies  the  sinking  of  American  merchantmen  bound  to  English 
ports,  without  even  the  opportunity  for  the  crew  to  escape.  Then 


1 


317509 


2 


The  Annals  of  the  American  Academy 


in  the  Frye  case,  the  Germans  insist  that  the  capture  of  the  cargo 
of  the  Frye  was  justified  because  it  was  consigned  “for  orders”  to 
Liverpool,  which  is  a  fortified  port;  and  the  German  presumption  was 
that  it  was  intended  for  the  British  government.  Germany  then 
turns  round  and  politely  promises  reparation  for  the  destruction  of 
the  vessel  because  of  a  treaty  of  1828  between  Prussia  and  the 
United  States  to  which  the  United  States  had  not  alluded.  This 
treaty,  by  the  way,  like  the  Belgian  neutrality  treaties  of  1831  and 
1839,  was  made  by  Prussia  but  is  recognized  as  valid  by  the  Empire 
of  Germany;  while  many  German  writers  have  insisted  that  the 
Belgian  treaties  ceased  to  have  binding  force  when  Prussia  and 
other  states  joined  in  a  federal  union. 

England  is  equally  illogical.  In  1908  that  power  asked  that 
the  question  of  maritime  law  in  time  of  war  be  left  out  of  the  Hague 
discussions,  in  order  that  they  might  be  treated  in  a  separate  con¬ 
ference  in  London.  The  resulting  Declaration  of  London  of  1911 
was  satisfactory  to  Great  Britain  and  was  signed  by  her  representa¬ 
tives,  but  appears  to  have  been  held  up  by  a  technicality  in  the 
House  of  Lords.  Nevertheless  when  the  present  war  breaks  out, 
Great  Britain  announces  that  she  will  stand  by  the  Declaration  of 
London;  then  modifies  the  list  of  contraband  in  that  Declaration; 
again  alters  that  list  to  the  extent  of  including  rubber  as  contraband, 
which  by  the  Declaration  is  declared  to  be  under  no  circumstances 
contraband;  then  throws  the  whole  theory  of  contraband  to  the 
winds  by  claiming  the  right  to  capture  any  vessel  bound  to  enemy’s 
ports,  or  cargoes  ultimately  destined  to  enemy’s  territory.  This 
is  not  so  much  a  “scrap  of  paper”  as  a  scrap  heap  of  papers. 

Disturbed  Neutrality 

The  only  way  out  of  this  mix-up  is  for  the  United  States  to  in¬ 
sist,  yesterday,  today,  and  every  day  to  the  end  of  the  war,  that 
whatever  mean  or  brutal  thing  the  belligerents  may  do  to  each 
other,  the  United  States  stands  unmoved  upon  its  right  to  be  a 
neutral  and  to  act  as  a  neutral.  From  that  safe  and  sane  position, 
steady  efforts  have  been  made  to  drive  the  United  States.  Both 
continental  Eurus  and  insular  Boreas  have  blown  with  all  their 
might  to  deflect  the  United  States  from  its  steady  middle  course. 
Englishmen  write  with  grief  and  disappointment  of  the  unwilling- 


Unarmed  Neutrality 


3 


ness  of  the  United  States  to  realize  that  the  Allies  are  fighting  the 
battles  of  America;  and  that  we  ought  to  come  to  their  aid  by  land 
and  sea.  Their  treatment  of  our  neutral  ships,  however,  is  not 
prepossessing.  It  gives  some  color  for  the  German  charge  that  the 
purpose  of  Great  Britain  is  to  get  control  of  all  the  seas  and  make 
the  laws  of  trade  for  other  nations.  On  the  other  side,  the  Germans, 
officially,  unofficially  and  German-Americanally  insist  that  the 
United  States  has  made  itself  one  of  the  allies  by  furnishing  muni¬ 
tions  to  the  enemies  of  Germany.  We  are  told  that  the  blood  of 
German  soldiers  killed  by  shrapnel  manufactured  in  America  will 
cry  out  against  us.  Just  what  would  be  the  legal  status  of  the 
blood  of  British  soldiers  who  were  killed  for  the  lack  of  our  shrap¬ 
nel  does  not  distinctly  appear!  Nor  is  it  plain  how  to  classify  the 
blood  of  the  Servians,  killed  by  German  shrapnel  fired  from  Turkish 
guns  in  1912,  and  from  Bulgarian  guns  in  1913. 

Nevertheless,  nothing  is  clearer  than  that  there  is  a  steady  ac¬ 
cumulation  of  anger  and  hostile  feeling  toward  the  United  States. 
The  English  are  not  altogether  displeased  that  the  United  States 
should  remain  neutral,  because  they  are  getting  the  goods.  The 
United  States  shows  no  moral  objection  to  furnishing  superior 
shrapnel  to  shed  the  blood  of  soldiers  in  any  uniform.  The 
English  have  driven  all  but  one  of  the  German  commerce  des¬ 
troyers  off  the  seas;  they  are  feeding  and  supplying  themselves, 
notwithstanding  the  German  submarine  campaign;  and  they  are 
receiving  supplies  of  food  and  ammunition  from  the  United  States 
in  any  desired  quantity.  It  is  true  that  they  have  accomplished 
this  by  their  superior  naval  power,  combined  with  a  sublime  in¬ 
difference  to  their  own  principles  of  neutral  trade. 

The  Germans,  however,  are  in  a  very  different  case.  Quite  con¬ 
trary  to  their  expectations  and  to  the  probabilities  as  shown  by 
the  experience  of  the  Southern  Confederacy  in  our  Civil  War,  they 
have  been  unable  seriously  to  damage  British  merchant  commerce. 
Great  Britain  is  relentlessly  uprooting  neutral  commerce,  which 
means  substantially  the  American  commerce  with  Germany  and 
her  allies.  The  English  have  hoped  to  starve  out  the  Germans, 
exactly  as  the  Germans  have  hoped  by  battleships,  aircraft  or 
submarines,  to  starve  out  the  British  Islands.  The  consequent 
frame  of  mind  among  thoughtful  Germans  seems  to  be  not  unlike 
that  of  thoughtful  Northerners  during  our  Civil  War.  We  felt 


4 


The  Annals  of  the  American  Academy 


a  sense  of  passionate  resentment  against  the  British  people  because 
they  were  akin  to  us  in  civilization,  and  were  supposed  to  be  a  lofty 
and  high-minded  people  who  should  sympathize  with  the  aspira¬ 
tions  of  a  great  nation.  The  Americans  insisted  that  the  British 
government  was  bound  to  take  precautions  against  commerce 
destroyers,  such  as  it  had  never  taken  before.  The  United  States 
rolled  up,  and  once  actually  presented,  a  bill  for  a  thousand  million 
dollars  for  the  prolongation  of  the  war.  That  fierce  feeling,  which 
we  now  see  to  be  not  wholly  reasonable,  lasted  for  thirty-five  years. 
It  was  extinguished  only  by  an  apology  from  Great  Britain  followed 
by  a  so-called  arbitration  in  which  Great  Britain  accepted  a  hand 
upon  which  she  must  inevitably  lose  the  game.  Fifteen  and  a  half 
million  dollars  for  the  Alabama  Claims  were  paid  in  cash.  Still 
it  was  not  till  the  Spanish  War  of  1898  that  John  Bull  again  beciame 
the  favorite  cousin. 

It  looks  now  as  though  there  would  be  a  similar  experence 
between  Germany  and  the  United  States.  From  the  first  week  of 
the  war  to  the  present  time  the  point  of  view  of  the  most  intelligent 
German  subjects  in  the  United  States  has  been  that  they  were  un¬ 
warrantably  deprived  of  the  natural  sympathy  of  the  American 
people.  What  they  expect  of  the  United  States  government  is  what 
we  expected  of  the  British  government — not  a  cold  impartiality  but 
a  decided  leaning  in  their  favor.  Without  insisting  on  a  direct  viola¬ 
tion  of  neutrality  as  a  mark  of  friendship,  the  Germans  have  ex¬ 
pected  that  the  United  States  would  go  to  the  extreme  in  their  be¬ 
half.  They  would  like  a  prohibition  of  export  of  military  munition, 
or,  failing  that,  an  embargo  like  that  of  1807  which  cut  off  all  ex¬ 
ports.  They  want  the  American  newspapers,  universities  and 
chambers  of  commerce  to  think  that  the  Germans  are  in  the  right; 
and  they  feel  that  a  failure  so  to  think  must  have  a  malevolent 
motive.  This  is  a  serious  state  of  things  for  America — one  of  the 
most  troublesome  results  of  the  war;  and  it  is  likely  to  leave  behind 
it  a  legacy  of  international  irritation. 

Neutral  Obligations 

Nevertheless  it  is  impossible  for  the  United  States  to  avoid  this 
distressing  state  of  things.  First  because  it  is  not  only  a  bad  moral 
policy  to  rob  Peter  in  order  to  pay  Paul,  but  because  Paul  is  likely 


Unarmed  Neutrality 


5 


to  make  himself  heard  on  the  subject  in  the  future.  Still  more 
because  it  is  not  the  duty  of  the  people  of  the  United  States  to  give 
either  physical  or  moral  support  to  either  side.  The  woe  of  Bel¬ 
gium  has  led  the  Americans  to  join  in  one  of  the  most  magnificent 
outbursts  of  practical  charity  ever  known  to  mankind;  but  if  the 
United  States  felt  itself  bound  to  go  to  war  to  defend  the  neutrality 
of  every  neutralized  state  and  strait,  it  would  be  in  the  position  of 
the  gendarme  in  the  play  written  by  the  boys  in  a  French  lycee. 
The  culminating  incident  is  the  benevolent  gendarme  discovering  a 
poor  woman  on  the  curbstone. 

“  What  is  the  matter,  my  unfortunate  one?  ”  he  inquires.  “  Alas, 
I  am  so  wretched.  I  have  lost  my  husband,  my  brothers  and 
sisters,  my  children.  I  am  homeless,  I  am  starving.  I  have 
nowhere  to  go.”  “Poor  woman,  what  can  I  do  for  you?”  says 
the  gendarme.  Thereupon  a  happy  thought  comes  to  him.  He 
draws  his  hanger  and  stabs  himself — you  understand,  to  show 
his  sympathy!  A  cooler-headed  gendarme  might  have  taken  the 
poor  woman  into  the  nearest  restaurant  and  revived  her  with  nour¬ 
ishing  food  and  drink,  and  then  he  could  have  rescued  another  un¬ 
fortunate  on  some  other  day. 

The  United  States  has  troubles  of  its  own — present  and  impend¬ 
ing — and  may  thank  God  that  it  is  outside  of  the  realm  of  trenches 
and  bombs  and  poisonous  gases.  It  is  the  duty  of  this  country  to 
stand  solidly  and  continuously  by  the  great  principle  that  it  has  a 
sovereign,  national  right  to  stay  out  of  a  war  just  as  much  as  to  go 
into  it.  We  cannot  command  the  great  belligerents  to  lay  down 
their  arms,  nor  can  they  compel  us  to  take  up  arms.  The  United 
States  has  an  unrivalled  opportunity  to  show  that  personal  sympa¬ 
thies  with  either  side  cannot  push  the  government  from  its  consistent 
duty  of  preventing  military  expeditions,  or  the  building  of  warships 
or  the  enlistment  of  troops,  within  our  boundaries;  that  it  will 
allow  no  foreign  ships  of  war  to  make  the  United  States  their  base 
of  operation.  When  the  war  is  over, — for  that  date  also  is  written 
in  the  books  of  the  fates — the  United  States  will  have  an  honorable 
record  in  this  respect.  The  difficulties  of  the  Washington  govern¬ 
ment  during  the  Civil  War,  and  its  insistence  at  that  time  on  more 
than  common  neutrality  on  the  part  of  other  powers,  are  the  best 
examples  for  the  present. 


6 


The  Annals  of  the  American  Academy 


Meaning  of  Contraband 

In  spite  of  all  efforts  to  befog  the  issue  the  United  States  has 
a  body  of  neutral  rights,  to  which  it  is  the  more  entitled  because  of 
its  care  to  fulfill  its  obligations.  Those  neutral  rights  do  not  depend 
upon  treaties,  or  Hague  conventions  or  the  good  nature  of  desperate 
antagonists.  It  lies  in  the  nature  of  human  society  and  the  organ¬ 
ization  of  states.  The  bottom  principle  in  the  civilized  world  is 
that  peace  and  commercial  intercourse  are  normal  among  nations; 
and  that  no  two  powers  are  required  to  become  enemies  because 
one  of  them  is  engaged  in  war.  The  seizure  of  the  property  of 
belligerents  at  sea  has  been  a  factor  in  wars  for  many  centuries.  If 
it  is  an  undesirable  part  of  war — which  is  far  from  being  self-evi¬ 
dent — nevertheless  it  does  exist  in  the  year  1915.  No  matter  how 
ferocious  the  belligerents  have  been  between  themselves,  how  regard¬ 
less  of  the  ordinary  methods  of  making  war ;  still  their  misbehavior 
carries  with  it  no  right  to  interfere  with  the  relations  of  the  United 
States  to  both  sides.  If  my  neighbors  right  and  left  are  engaged  in 
a  hullabaloo  because  the  chickens  of  one  stray  into  the  backyard  of 
another,  and  the  other’s  dog  disposes  of  them;  why  shall  not  my 
children  continue  to  slide  down  the  cellar  door  of  both  premises? 

We  seem  to  forget  that  the  ships  of  the  United  States  and  other 
neutrals  have  the  same  right  to  sail  the  seas  and  to  enter  the  ports 
of  all  the  belligerents  as  though  there  were  no  war  going  on — subject 
only  to  the  principle  that  neutrals  must  not  interfere  with  actual 
military  and  naval  operations.  Mines  are  now  the  ordinary  de¬ 
fence  of  seacoasts  and  neutrals  must  take  every  precaution  against 
them  when  approaching  a  coast  or  entering  a  port,  and  an  area 
where  a  sea-fight  is  going  on  is  not  a  suitable  place  for  merchant 
steamers  of  any  kind.  With  those  exceptions  there  are  only  two 
substantial  limitations  on  neutral  trade.  The  first  of  these  is 
contraband — a  term  which  every  student  of  international  law 
thought  he  understood  until  the  present  war.  The  reason  for  seiz¬ 
ing  contraband  is  simply  that  it  is  a  direct  participation  in  land 
and  sea  operations.  Although  by  the  custom  of  nations  no  gov¬ 
ernment  is  bound  to  prevent  the  shipment  of  contraband,  no 
government  will  protect  it,  once  outside  its  ports;  or  make  any 
reclamation  for  its  capture,  if  it  be  truly  contraband. 

Partly  through  the  attitude  of  the  United  States  on  that  ques- 


Unarmed  Neutrality 


7 


tion  in  the  Civil  War,  the  world  has  adopted  the  principle  of  “  con¬ 
tinuous  voyages,”  which  is  in  effect  that  a  contraband  cargo  des¬ 
tined  for  a  belligerent  may  be  seized  if  on  its  way  to  a  neutral  port. 

The  crux  with  regard  to  contraband  is  the  list  of  contraband 
articles.  And  here  the  only  question  is  whether  the  cargoes  do 
actually  and  directly  aid  the  recipient  to  carry  on  hostilities.  The 
suggestion  of  the  English  that  cotton  ought  to  be  contraband  be¬ 
cause  a  very  small  proportion  of  the  cotton  shipped  might  be  trans¬ 
formed  into  explosives  is  ridiculously  far  fetched.  Copper  seems 
to  be  a  necessity  for  making  of  munitions,  and  perhaps  might  be 
added.  Petrol  is  obviously  likely  under  present  conditions  to  be 
used  in  the  field;  but  what  about  steel,  without  which  guns  could 
not  be  cast  and  automobiles  could  not  be  built?  Upon  this  whole 
question  of  the  list  of  contraband  the  State  Department  has  been 
weak;  for  while  manfully  protesting  against  delays  and  exaspera¬ 
tions  in  the  proceedings  on  vessels  seized  on  the  basis  of  contraband, 
it  has  never  formally  protested  against  the  ever  expanding  British 
list;  it  has  never  clearly  applied  the  touchstone  of  actual  military 
use  to  the  articles  held  up  by  the  British;  and  it  has  once  incau¬ 
tiously  admitted  the  “  law  of  necessity”  as  a  valid  reason  for  altering 
the  ordinary  practices  of  international  law. 

Meaning  of  Blockade 

In  the  discussions  of  blockade,  also,  there  has  been  a  hesitancy 
to  base  the  position  of  the  United  States  on  the  solid  ground  of  the 
real  nature  of  blockade.  It  is  a  common  practice  of  war  to  invest 
a  port  by  sea,  partly  to  cut  off  its  commerce,  partly  to  prevent 
supplies  reaching  the  coast — always  as  a  positive,  active  military 
measure.  The  United  States,  during  the  Civil  War,  captured  vessels 
anywhere  on  the  high  seas  bound  to  the  ports  of  the  Southern  Con¬ 
federacy,  because  outside  each  of  those  ports  it  had  a  competent 
blockading  squadron.  Any  vessel  attempting  to  enter  or  to  leave 
that  port  was  therefore  directly  interrupting  the  operations  then 
going  on,  and  if  captured  was  good  prize. 

That  was  the  sort  of  blockade  which  it  was  supposed  the  im¬ 
mense  British  fleet  would  institute  against  the  German  coast,  and 
the  United  States  would  never  for  a  moment  have  questioned  the 
capture  of  ships  bound  to  actually  invested  ports.  For  reasons 


8 


The  Annals  of  the  American  Academy 


best  known  to  themselves  the  British  have  not  thought  it  prudent 
to  establish  such  forces  off  the  coast.  They  do  not  feel  physically 
able  to  keep  up  such  a  blockade.  Having  failed  therefore  in  what 
was  supposed  to  be  its  obvious  method  of  attack,  Great  Britain  has 
now  declared  a  blockade  which  is  not  a  blockade.  The  use  of  the 
word  in  the  British  Orders  in  Council  is  delusive.  And  this  bitter 
pill  is  to  be  sugared  by  the  declaration  that  neutral  vessels  and 
cargoes  which  may  be  bound  to  belligerent  ports  shall  be  captured 
and  then  paid  for. 

The  American  government  has  officially  admitted  to  England 
that  “the  methods  of  modern  naval  warfare  ....  may 
make  the  former  means  of  maintaining  a  blockade  a  physical  im¬ 
possibility.  ”  Then  instead  of  drawing  the  logical  deduction  that 
if  a  blockade  is  a  physical  impossibility  it  can  neither  be  instituted 
or  respected,  our  government  accepts  the  new  kind  of  blockade, 
which  is  practically  the  closing  of  the  English  Channel  and  the 
water  routes  to  the  north  of  the  British  Islands,  which  had  for  un¬ 
counted  ages  been  the  common  property  of  mankind.  A  neutral 
vessel  entering  the  North  Sea  without  the  consent  of  Great  Britain 
in  no  way  interferes  with  British  warfare.  The  action  of  the  British 
and  German  governments  in  declaring  areas  on  the  high  seas  to  be 
“military  areas”  or  “zones  of  war”  has  no  more  justification  than 
it  would  be  to  hold  that  the  Straits  of  Belleisle  or  the  channel  between 
Key  West  and  Cuba  were  no  longer  open  for  American  commerce. 

Protection  of  Neutral  Rights 

To  protect  these  rights  which  have  been  so  wantonly  violated 
by  two  great  powers  is  a  hard  matter.  The  United  States  has  re¬ 
monstrated  in  a  manly  and  dignified  tone,  though  at  no  time  cover¬ 
ing  the  whole  ground  of  just  complaint.  In  the  days  of  the  Orders 
in  Council  and  Decrees,  more  than  a  century  ago,  we  learned  the 
stern  lesson  that  appeals  to  humanity  and  common  sense  are  of 
little  weight  in  the  midst  of  such  passions.  It  has  been  suggested 
that  the  remaining  neutral  powers  ought  to  organize  as  did  Russia, 
Holland  and  other  European  powers  in  the  famous  Armed  Neutrality 
of  1781;  that  they  should  lay  down  a  program  of  their  rights  as 
neutrals,  and  insist  that  the  neutrals  should  respect  them.  Such 
joint  action  would  doubtless  have  some  influence,  and  it  would 


Unarmed  Neutrality  9 

remain  on  record  as  a  counsel  of  perfection.  Both  Great  Britain 
and  Germany  in  this  controversy  have  argued  courteously  for  the 
absolute  necessity  of  their  behavior  as  a  special  measure  intended 
to  countervail  the  awful  depravity  of  the  other’s  action.  And 
Great  Britain  on  the  question  of  the  procedure  of  seizing  vessels 
and  prize  courts  promised  amendment  which  has  hardly  been  carried 
out.  On  the  essential  point,  however,  of  capturing  or  destroying 
American  merchantmen  which  have  a  right  to  an  untroubled  voyage, 
they  are  alike  stubborn.  Perhaps  sometime  a  bill  for  damages 
may  be  presented  to  one  or  to  the  other  offending  power. 

Certainly  the  United  States  could  protest  with  vastly  more 
effect  if  it  had  a  navy  of  the  same  kind  as  that  of  Great  Britain  and 
Germany — that  is,  a  navy  including  a  number  of  fast  and  massive 
dreadnoughts,  and  also  including  a  large  flotilla  of  destroyers  and  of 
submarines,  and  a  suitable  aerial  contingent.  The  friendship  and 
the  trade  and  good  will  of  the  United  States  are  worth  having,  but 
not  sufficiently  so  to  protect  our  interests  in  a  time  of  crisis.  The 
neutrality  of  the  United  States  has  to  be  maintained  with  a  slender 
military  backing.  The  United  States  is  standing  up  as  the  champion 
of  the  neutral  world,  and  is  maintaining  principles  which  would  other¬ 
wise  go  under.  Nevertheless  nine  months  of  war  have  been  a 
sufficient  proof  that  unarmed  neutrality  is  a  steam  launch  in  a 
cyclone.  However  sound  or  seaworthy,  the  most  it  can  expect  is  to 
live  through  the  storm. 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/unarmedneutralitOOhart 


3  0112  098204826 


